Wilder v. Mayor & Council of Decatur , 153 Ala. 521 ( 1907 )

McCLELLAN, J.

— This bill was filed for the prayed, purpose of enjoining the operation and use of a branch sewer hy the city of Decatur and one Laude, whose saloon sewer fixtures were connected therewith, until due compensation is made for the injury to complainant’s (appellant) private property consequent upon the installation and maintenance of said sewer without the consent of the owner. The sewer is 8 inches in diameter and is laid 12 feet under the surface of the lot. Since the “possession is prima facie evidence of title, and is sufficient evidence against all who do not show a prior possession or better title” (Mickle v. Montgomery, 111 Ala. 415, 20 South. 441), a rule operative to the advantage of the complainant here and since there was testimony supporting such conclusion, the only question in the cause was the amount of the damages to which complainant was entitled. The lower court found the damages to be only nominal, and therefore awarded $1.

A most careful consideration of all the testimony noted in the cause convinces us that more than nominal damages should have been decreed to the complainant. Holding this conclusion, and conforming to the usual practice in such matters, the decree of the chancellor is affirmed in the respect that it adjudges the complainant entitled to relief, but as to the amount found as damages the decree is reversed, and the cause is rmanded, In order that a reference to the register may he had to ascertain the damages accruing to complainant from the injury to her premises by the permanent installation of the branch sewer described in the bill.

Affirmed in part, reversed in part, and remanded.

Tyson, C. J., and Dowdell- and Anderson, JJ., concur.